Archive for the ‘Antonin Scalia’ Category

Justice Antonin Scalia decided to have some fun with a lawyer a couple days ago. By publicly humiliating him.

The crime that needed to punished? The lawyer, Steven Lechner, was reading his argument to the Supreme Court in Marvin Brandt Revocable Trust v. United States. It was his first appearance before SCOTUS. And Scalia didn’t like someone walking into his home to do that — to read.

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -­

First, it’s completely understandable that any lawyer appearing before the Supreme Court of the United States for the first time is going to be nervous. Very nervous. As in, it’s-hard-to-sleep-for-months-before nervous. That kind of nervous.

Anyone that’s tried cases or argued appeals, of course, knows this, albeit on a reduced scale. Performing in a local play isn’t the same as your first appearance on Broadway, but it’s enough to scare the bejesus out of most of us. You are about to walk on a high wire and there is no net. We desperately want something to hold onto, a crutch to grab, if you don’t mind me mixing my metaphors of Broadway, high wires and crutches.

The problem with this is that juries and judges hate it when you read to them. There is nothing in the world like the immediacy of eye contact. From a purely tactical standpoint, you don’t want to put your head down and read because it’s less effective. That’s why Presidents use teleprompters.

On those occasions when I must read, because I need to actually quote a piece of testimony, a line from a judicial opinion, or a statute, I will likely apologize for doing so in advance, thereby both keeping the attention of the audience and accentuating (I hope) the words being read.

The solution to the problem is not to take a speech to the lectern. Which is scary. But at that point, you know your case pretty darn well. A one-page outline of points to hit during your remarks should suffice.

Can’t make it fit to one page? Then get rid of extraneous words. Two to three words is all you are likely to need to remind yourself of the concept you want to address.

But there is a second point about this incident to make, and that is the abuse from Justice Scalia. While this may be his home court and he may be perfectly comfortable up their on the bench, he knows damn well that a rookie appearance before this bench will twist any rational soul up in nerves. He embarrassed someone merely because he could, because he wanted to. In the language du jour, he bullied him just for the sake of it.

Leaving aside his jurisprudence, there is a part of me that has a soft spot for Scalia ever since he gave my brother screenwriting advice on the issue of state secession, as well as for his writing ability. But this conduct was unacceptable.

The United States Supreme Court put arbitration back in the news yesterday, by deciding a case in favor of American Express and against a restaurant (American Express v. Italian Colors Restaurant). The restaurant had a $40,000 claim, but to prove it would cost about $1M. They wanted, therefore, to proceed as a class action with others similarly aggrieved by American Express policies, as that is what class actions are made for: allowing small claimants to aggregate to make justice economically viable.

Justice Scalia, writing for the majority, says boo hoo and too damn bad if the courthouse doors were slammed in their face due to a contract:

“Respondents argue that requiring them to litigate their claims individually—as they contracted to do—would contravene the policies of the antitrust laws. But the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.”

Justice Kagan, writing in dissent, calls Scalia’s on what he did:

Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.

And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.

I won’t get into further details, as it is covered elsewhere, such as here:

I write instead to briefly explain whypro-consumer groups hate arbitration agreements that are forced onto consumers in the fine print of countless agreements.

Corporations appear regularly in front of arbitrators, but unlike judges, litigants get to actually pick who they appear before. True, the choice of arbitrator must be done with the consent of the consumer, but the consumer is likely to appear only once and not be the frequent flyers that corporations are.

Arbitrators have, therefore, two customers in front of them; one that regularly hires them to arbitrate and the other appearing as a one-off. Who does the arbitrator want to make happy?

You might think that the arbitrator would just do what is fair, but fair is a flexible term. Arbitrators know that if a defendant-corporation deserves to be hammered in the verdict, and they do exactly that in their decisions, then the company is likely to blacklist the arbitrator from their “approved” list.

If you were corporate counsel, wouldn’t you be tracking which arbitrators have given favorable verdicts and which ones not? Wouldn’t you be selecting only the favorable ones? Wouldn’t you have an “approved” list?

And if you are an arbitrator, wouldn’t you want to be on that list with a constant flow of business?

The consumer, of course, doesn’t have the advantage of appearing often, and even with counsel, the counsel is unlikely to be have as much business in front of the arbitration company as the corporation.

There are times, of course, when a plaintiff may want to arbitrate, such as circumstances where speed is of the essence due to age, or the cost of experts exceeding the value of the case. That’s fine, so long as it’s elective.

But that isn’t what’s happening lately as corporations rush to put compulsory arbitration agreements in every consumer contract they can find.

Congress should act to reverse this decision. Given the staggering sums of money that corporations give to candidates, of course (courtesy once again of the Supreme Court in Citizens United v. Federal Election Commission), that is unlikely.

It was as an oddball topic for this page for sure, as it dealt with something Prof. Eugene Volokh wrote on whether the issue of secession was resolved at Appomattox. In response I published a letter from Justice Antonin Scalia to my brother — that had been sitting in his drawer for a few years as a family curio — where Justice Scalia gave his very firm opinion that “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede”. The story of that letter is at the original post, and if you want the entertaining background you can get it there.

In the wake of the Obama-Romney election, however, that letter is back in the news. Yesterday Politico reported on people petitioning the government for the right to secede, because if you get 25,000 signatures you will get a response from the White House:

Using the Obama administration’s own We the People website, nearly two dozen petitions have sprung up asking the Obama administration for permission to withdraw from the Union.

The two most popular petitions, Texas and Louisiana, have both drawn more than 10,000 signatures each as of Monday morning. The Texas petition needs only 7,000 more signatures to trigger an official White House response.

That number has rapidly increased, as voters in 47 states who saw their presidential candidate come in second have been circulating petitions on the issue of secession. A quick Googling of Scalia No Right To Secede and you can see many bloggers have already hunted for original sources in the last 24 hours. And that, of course, leads back to the letter from Justice Scalia to my brother.

I’m sure I won’t be the first, or the last, to observe that a desire to secede based on the results of democracy seems a tad odd. Are the secessionists advocating dictatorship instead? Monarchy? Theocracy?

The only question I really have on all this is: When the White House says “No” to the secessionists, will they quote Justice Scalia as authority?

Supreme Court Justice Antonin Scalia, it seems from this news report, started a four-car collision while heading southbound George Washington Parkway across the Potomac River from Washington in Virginia. He was going to work, about to hear arguments in a labor case involving Wal Mart.

Three interesting little tidbits from this story:

Supreme Court Justice Antonin Scalia was ticketed by U.S. Park Police after being found responsible for a four-car traffic accident on his way to the high court Tuesday morning.

Why would Justice Scalia be responsible? Because he hit another in the rear. Assuming local laws down there are the same as up here, that makes him liable for following too close to the car in front of him and failing to see what was there to be seen. No, that “failing to see” is not a political joke, but part of the law. It’s possible, of course, that he has a non-negligent excuse for the accident (for example, the other driver cut him off and slammed on his brakes in traffic). But that doesn’t seem likely from this report from the Washington Post:

Brooke Salkoff saw it all go down. The former NBC reporter told us she was just behind Scalia’s vehicle, a shiny black BMW in the left lane. “It slammed into the car in front of his, which pushed the other two forward,” and caused them all to skew into the right lane, she said.

Well, no, it doesn’t “just happen.” That makes it sound like an unavoidable accident, like a deer that darts into the road. But an accident like this happens because one (or more) people weren’t driving carefully. Thus, the ticket.

The third tidbit:

No one was injured.

This is possible, but as any doctor that has seen trauma patients will tell you, many to connective tissue and soft tissue structures won’t appear for a day or more, often the result of inflammation that develops after the trauma.

Final note: According to his bio, he spent his first six years as a lawyer at a Cleveland law firm. Did he ever argue a case? If Scalia were to actually show up in court to challenge the ticket, would it be the first matter he ever argued from the courtroom well?

In responding to my brother Dan’s letter regarding the legal plausibility of Maine seceding from the union to join Canada, Justice Antonin Scalia raised two points. First, he said that the Civil War settled the issue of the constitutional basis for secession. Second, he indicated that he didn’t see how such an issue could even reach this nation’s high court.

I’m here today to take issue with both points before turning this blog (hopefully) back toward the personal injury field that is my bailiwick. With respect to the first assertion, Scalia’s exact words were:

If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.

There are no shortage of people willing to criticize such a position, because he simply states that might makes right. But the physically stronger side winning is not legal analysis, it is merely guns and tactics and doesn’t tell you squat about any legal basis. Many found that odd from a guy like Scalia who thrives on analysis.

But this post is really dedicated to Justice Scalia’s second assertion regarding who the actual parties to such a suit would be. And despite many dozens of blog postings regarding The Letter, I haven’t seen any discussion of this second point. Justice Scalia wrote:

Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

Well, let me take a crack at envisioning it: The United States is not party to the action for secession. Rather it is State v. State. Because if one state quits the union the others are saddled with the quitter’s share of the national debt. The other states, being unhappy about Maine (or Texas, Vermont, South Carolina, etc.) shirking its obligations, sue the departing state for its share.

And they bring that suit in the Supreme Court since the court has original jurisdiction to hear matters “between two or more states.” There isn’t any need for years worth of lower court legal wrangling, which is a nice bonus when writing a comedy for the big screen.

In fact, it’s this “It’s the money, stupid” plot line that my brother was using when he wrote to the justices, presaging the conservative Tea Party movement by three years. The set-up in the story, in a nutshell, has three University of Maine stoners in a midnight stupor in desperate need of a political science paper for the next day. They write up a manifesto on the vast sums of money that Mainers owe due to the rapidly escalating irresponsibility in Washington, and then urge Maine to join Canada. Manifesto, of course, is the charitable word for rant. The rant hits the college rag. The local paper picks it up on a slow news day, it strikes a chord with many and people press their state government to address the issue, which ultimately goes to a state-wide referendum as the political farce takes off. Our three heroes use their status as potential founding fathers to further the never-ending pursuit of weed and women.

A Supreme Court battle forms part of the script, albeit not a giant one because courts aren’t as funny as standard-issue politicians or stoners, with the other states insisting that if Maine leaves they take their part of the debt with them. It’s all about the money.

But wait!, I hear you say regarding the legalities. If a state has left the union then the suit is no longer “between two or more states.” A seceding state would most assuredly claim that the high court doesn’t have jurisdiction to hear the matter. Lack of jurisdiction is a common defense in suits, and a court must do an analysis to determine its merit when raised.

And therein lies the issue of how secession can land before the Supremes; the court must resolve a jurisdictional issue. In order for the court to resolve the merits of the money suit they must first decide whether or not the exiting state has legally left. If the state has legally left, the court can’t hear the case because it is not between “two or more states.”

This analysis seems backwards from the way jurisdiction is usually discussed. Merits generally come after jurisdiction has been established. But in this case the merits discussion has to do with money owed. And the issue of whether the court can even hear the case as a dispute between states must first be resolved, and that means looking at the issue of whether secession was legal.

How the case would be resolved in the real world is, of course, beside the point. This is, after all, a movie and the level of detail above wouldn’t be in it.

But Justice Scalia had written that he can’t think of how the matter of secession would get to the court. Well judge, I see how the issue can get to you. At least in theory. And it’s a pure jurisdictional question in a battle between states over money.

And for those wondering how, exactly, the Supreme Court could enforce a judgment against a seceding state in the event the court dumped the unhappy secessionists? Well, that has always been a problem since the judiciary doesn’t have a military wing to it. In 1957, the Army was called in on Executive Order to integrate Central High School in Little Rock. It remains a problem today out in Maricopa County, Arizona, where a court officer was caught on camera reading the files of a defense lawyer while she was addressing the court. The guy was held in contempt, and ordered to apologize on the courthouse steps. This was followed by a law enforcement sick-out. Enforcement can be tricky.

But the difficulty with enforcement of a court order is an issue separate from having the matter heard in the first place. Under this scenario, if a military solution were to be used to stop secession, it would come after a legal analysis of the merits.

Dan’s script, being a political farce, obviously doesn’t end with a military solution. I can’t give away more since it is just now being entered in competitions and my brother is still scrapping for an agent to represent him. (Anyone out there? Is this thing on?) But of his five finished screenplays, this is the best. And all the others have advanced in competitions.

So in the end, Justice Scalia, I think it can be done. Granted, I’m pretty far afield of personal injury law — you really can’t get any further afield than this — but then, so is almost everyone else that opines on the subject with the exception of a few scholars.

If I’ve completely blown the analysis — and I admit that despite its simplicity that is certainly possible — I’m sure people will let me know.

I watched (from my iPhone) with fascination as the story on my little post exploded across big time blogs/media (Washington Post, NBC, CBS, WSJ, Volokh, ATL, Politico, and many more). It’s tough to blog with an iPhone though, and Mrs. NYPILB would not have been pleased if I was tethered to a laptop instead of frolicking on Floridian beaches, pools and golf courses. (That’s Dan with my kids above, in his alter ego role as Super Uncle.)

Thus far, over 23,000 page views for that one post.

A little back story on why he wrote to the members of the court, over my objection, might be helpful. When he wrote his award-winning sci-fi thriller of astronauts stranded in space and fighting with each other for survival, he sought expertise on the plausibility of his plot. So he wrote to astronauts. And he got responses.

If astronauts would respond to him, he figured, why not Supreme Court justices, especially given the lack of people that could speak authoritatively on the issue of secession? When I told him he wouldn’t get meaningful responses, I was right on 9/10 of the justices he wrote to. Scalia was the exception.

But while Scalia was the only one to respond to the substance of my brother’s request, other responses did come in. He received three personally signed rejection letters from Justices Clarence Thomas, Samuel Alito and Stephen Breyer, which are all lovingly reproduced here. While reproducing rejection letters isn’t exactly the norm, these happen to be first rate, classy rejections. If you’re gonna get dumped, it might as well be by the best. Frankly, I was stunned that he even got these. And, as you can see, none of them are form letters. And they use top-notch stationary. Just in case you were wondering.

On the actual substance of Scalia’s letter, I will follow in another post with my thoughts on how the issue could reach the high court, despite Scalia’s protest in the letter that:

“Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

Regardless of whether one agrees with Scalia’s political-judicial beliefs, the guy clearly picked up major cool points for giving my brother a substantive response. Justices Thomas, Alito and Breyer also picked up a few of those points, to the extent that they did take the time to respond, albeit with rejection. Justice Souter picked up a single point for having a secretary respond.

On the flight back from Florida I pondered a question: Is there any significance to the fact that the responding troika of Scalia-Alito-Thomas form 3/4 of the conservative wing?

I’ll leave it to others to opine on that subject.

Addendum: A commenter notes that Justice Alito spelled our last name wrong and that this deserves a head-shaking response: “‘Turkwitz??’ Not true, Justice Alito, not true.”

The right of a state to secede from the nation is way outside my personal injury wheelhouse. But it has become a source of conversation on professorial and political blogs, and the concept has generated interest from the Tea Party movement.

As it happens, my brother has a letter from Justice Antonin Scalia that is directly on point as to the legitimacy of secession. How he got that letter, and its contents, are the subject of today’s post.

The inspiration for writing, and the release of the letter, comes from Prof. Eugene Volokh, who wrote, “I keep hearing the claim that the legitimacy of secession from the U.S. was ‘settled at Appomattox,’ and I wanted to say a few words about why I think that makes little sense.”

The good prof goes on to write that, while clearly not supporting secession of any State in concept, that the issue is far from settled. He writes:

If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that “in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right” will have precisely the weight that the Americans of 2065 will choose to give it — which should be very little.

Thus far, that post has generated 152 comments.

Well prof, Justice Scalia disagrees with you. Explicitly. Why did he do so in a letter to my brother? Glad you asked.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn’t get him an agent or a foot in the door of Hollywood to get his screenplays made into films — it isn’t what you write, but who you know — but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O’Connor) with this request:

I’m a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I’m sure you’ll find the story very entertaining.

I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay.

So there you have it. At least one vote solidly on record as saying that there is no right to secede. And it likely comes from a place the right wing secessionists most wanted to have a vote.

And yes, Dan still needs an agent. Because writing great scripts isn’t enough if you don’t know The Powers That Be on the other coast. And, for what it’s worth, his now-completed script of Maine joining Canada is better than his award-winning one about a mis-adventure in space.

(Update: — Welcome new readers…there seems to be a fair share of incoming to this little joint)

But with all the talk of the 10th Amendment, nullification and interposition, states rights and secession — following Gov. Rick Perry’s misstatement that Texas, on entering the Union in 1845, reserved in its constitution a right to secede — one might think so.

Nearly one-third of Georgia Republicans would be in favor of leaving the United States, its polling shows. Pause here for any ironic thoughts about the party of Abraham Lincoln that suddenly spring to mind.

A new Daily Kos/Research 2000 poll finds that Rick Perry’s suggestion at the Tea Party last week, that Texas might have to secede from the Union, actually has significant support from his home state’s Republican voters.

But you can’t convince me that the founding fathers wouldn’t allow you to secede. The Constitution is not a suicide pact. And if a state says, I don’t want to go there, because that’s suicide, they have a right to back out. They have a right.

In the 1868 case of Texas v. White, 74 U.S. (7 Wall.) 700, a case dealing with the title to some U.S. bonds, the Supreme Court ruled that Texas’, and hence the South’s, attempted secession in 1861 was unconstitutional. But the opinion also contained some wording that might give secessionists a way around White.